Ministers have a duty to uphold open government

Following Open Government Week and the recent federal election, it is timely to reflect on how outgoing and incoming ministers can meet their responsibilities under freedom of information (FOI) law at this time.

A new Administrative Arrangements Order on 13 May 2025 made a number of changes to ministers’ offices. Outgoing and incoming ministers should consider the updated guidance in Part 2 of the FOI Guidelines and recent decisions to ensure they meet their responsibilities under the Freedom of Information Act 1982 (FOI Act).

Our recently updated Part 2 of the FOI Guidelines reflects last year’s Federal Court decisions that involved questions about ministers’ responsibilities to deal with FOI requests when they leave or change ministerial offices.

These decisions – Patrick v Attorney-General (Cth) [2024] FCA 268 and Attorney-General (Cth) v Patrick [2024] FCAFC 126 – identified an implied duty under the FOI Act on ministers to preserve an applicant’s right to have their FOI request determined.

These decisions also clarified that the time for assessing whether a document is an ‘official document of a minister’ is the time when the request for access is made, and only at that time.

Part 2 of the FOI Guidelines gives practical examples of how a minister could – when they leave or change office – preserve an FOI applicant’s right to have their FOI request determined.

For example, an outgoing minister could provide the incoming minister with the undecided FOI request, and any relevant documents, to enable the incoming minister to make a decision on the FOI request.

Part 2 of the FOI Guidelines explains that an incoming minister will need to process any FOI requests on foot with the outgoing minister at the time of taking office. The incoming minister will also need to respond to any reviews or appeals of FOI decisions on foot at the time of the change or lodged thereafter.

Upon receipt of an undecided FOI request, the incoming minister should quickly assess whether they have possession of relevant documents (for example, if they were provided to the new minister by the outgoing minister), or whether an agency is best placed to process the request. A minister may transfer an undecided FOI request to an agency under s 16 of the FOI Act if the agency is better placed to process the request, provided the FOI request is within time.

If documents are in an agency’s possession, those documents are not official documents of a minister. In Patrick v Attorney-General (Cth) [2024] FCA 268, the court observed from s 4 (Interpretation) of the FOI Act that a document cannot be both an ‘official document of a minister’ and a ‘document of an agency’.

FOI Commissioner Toni Pirani applied that observation in the recent Information Commissioner review decision of Geoffrey Shafran and Minister for Veterans' Affairs and Defence Personnel (Freedom of information) [2025] AICmr 46 (4 March 2025), and found that the document at issue was not an official document of a minister on the day of the FOI request. The decision may be instructive for ministers on how to manage FOI requests for a document that is not in their possession at the time of the request, but is in the possession of an agency at that time.

Ministers are required by s 93 of the FOI Act to provide information to the Information Commissioner to enable her to prepare the OAIC’s annual report. For new ministers, this includes relevant information related to the activities of the former minister. Ministers can arrange for their portfolio agency to assist them to provide information under s 93.

Accountability, transparency and openness are essential for good government. A key pillar of open government is that the community can access relevant, usable, authentic and timely information about government processes and decisions that impact them and their lives.